Federal Circuit and Family Court of Australia Act 2021

• Judges of both Divisions: the Chief Justice, Deputy Chief Justice, Senior Judges and puisne Judges of Division 1; the Chief Judge, Deputy Chief Judges (Family Law; General and Fair Work) and other Judges of Division 2.
• The Governor‑General: appoints and receives resignations of Division 1 Judges (ss 11, 19), removes a Judge only on address from both Houses (s 20), and appoints the Chief Executive Officer of Division 1.
• The Minister: approves certain contracts exceeding $1 million (ss 78(6), 245(6)), may prescribe additional corporate services (ss 78(7), 245(7)), appoint an acting Chief Judge in limited circumstances (s 130(3)), and makes decisions on retired disabled Judge benefits that are subject to ART review (ss 125-127).
• Parties to proceedings: in family law, child support, general federal law, Fair Work, and Commonwealth tenancy disputes. They must comply with the overarching purpose duty (except in FLA proceedings), are subject to case management directions, and have rights to seek review of delegation decisions and apply for costs, interest, suppression orders and vexatious proceedings relief.
• Legal practitioners: owe a duty to assist clients to comply with the overarching purpose, may be required to give cost and duration estimates, and can be ordered to pay costs personally without recovery from the client (ss 68(2)-(6), 191(2)-(6)).
• The Chief Executive Officer and Principal Registrar: assists the Chief Justice and Chief Judge in managing administrative affairs (ss 84, 250), holds functions as a family consultant under the Family Law Act 1975 (s 278), and may exercise delegated judicial powers.
• Senior Registrars, Registrars, family consultants, the Marshal, Deputy Marshals, the Sheriff and Deputy Sheriffs: perform statutory and delegated functions, including security (Marshal and Deputy Marshals) and service of process (Sheriff for Division 2, Marshal for Division 1).
• Witnesses and persons served with subpoenas: face offences for non‑attendance or refusal to answer questions, with six months’ imprisonment (s 200).
• The public and news media: affected by suppression and non‑publication orders; entitled to appear and be heard on an application (s 232).
• Persons subject to vexatious proceedings orders: and those acting in concert with them, who must seek leave to institute any proceeding under strict conditions (ss 242-243).
• Retired disabled Division 2 Judges and their eligible spouses and children: entitled to disability pensions, superannuation contributions and death benefits under Div 3 of Part 2 of Chapter 4 (ss 122-128).

Overarching purpose duties. A party must conduct a civil proceeding, including settlement negotiations, in a way that is consistent with the overarching purpose of just, quick, inexpensive and efficient resolution (ss 68(1), 191(1)). A lawyer must take account of that duty and assist the party to comply with it (ss 68(2), 191(2)). The Court, in exercising costs discretion, must take into account any failure to comply with these duties, and may order the lawyer to bear costs personally; the lawyer cannot recover those costs from the client (ss 68(4)-(6), 191(4)-(6)).

Case management powers. The Court or a Judge may give binding directions on practice and procedure, including time limits, limits on evidence and documentation, requirements for written submissions, and waiver or variation of Rules of Court (ss 69(1)-(2), 192(1)-(2)). Non‑compliance may lead to dismissal, striking out, disallowance of evidence, or costs orders including indemnity costs (ss 69(3)-(4), 192(3)-(4)).

Chief Justice and Chief Judge administrative duties. The Chief Justice is responsible for managing the administrative affairs of Division 1, excluding corporate services (s 78). The Chief Judge holds the equivalent responsibility for Division 2 (s 245). Both must work cooperatively to ensure common rules, forms, practices and procedures, and common approaches to case management in family law and child support proceedings (ss 70, 75, 193, 216). The Chief Executive Officer assists both (ss 84, 250). The Chief Justice may appoint advisory committees (s 82) and delegate administrative powers to other Judges (s 77); the Chief Judge has equivalent powers (ss 249, 275).

Complaint handling. The Chief Justice or Chief Judge may handle a complaint about a Judge of their Division if they hold a “relevant belief” (circumstances that may justify removal under s 72(ii) of the Constitution, or that may adversely affect performance of judicial duties or the court’s reputation): ss 48(1), 145(1). Complaint handlers and those assisting have the same protection and immunity as a Justice of the High Court (ss 110, 277).

Delegation and review. Where Rules of Court delegate judicial powers, the delegate acts independently (ss 99, 255). A party may apply for review of the delegate’s exercise of power; the Court may also review on its own initiative and make any order it thinks fit (ss 100(1)-(2), 256(1)-(2)). If a delegate considers it inappropriate to determine an application, they must arrange for it to be heard by a Judge (ss 100(3), 256(3)).

Representation. A party is not entitled to be represented in either Division unless the representative is entitled to practise in a federal court under the Judiciary Act 1903, authorised by regulations or another Commonwealth law (ss 57, 175).

Marshal, Sheriff and policing. The Division 1 Marshal serves and executes process, provides security, and handles custody (s 104). In Division 2, service and execution of process rests with the Sheriff, while the Marshal has security and custody duties (ss 260, 262). Arrest powers may be exercised only by a person authorised by law; force must be reasonable and must not cause death or grievous bodily harm except to protect life or prevent serious injury (s 271).

Dispute resolution obligations (Division 2). The Court must consider advising parties about available dispute resolution processes; if a process may help, it must advise the parties and may adjourn to enable attendance (ss 157, 158). A legal practitioner must consider whether to advise a client on using dispute resolution (s 159). Referral to mediation is possible without consent, but evidence of anything said or admitted is inadmissible (s 169(4)).

Appeal rights and constitution. An appellant has the right to a Full Court hearing for appeals from a single Division 1 Judge or a State Family Court/Supreme Court (s 32(1)(b)). For appeals from Division 2 or the Magistrates Court of Western Australia, the default is a single Judge unless the Chief Justice directs a Full Court (s 32(1)(a)). The appellate court may affirm, reverse, vary or remit; it may exercise powers in favour of any party including non‑appellants (s 36(1), (4)). An appeal may be determined without an oral hearing if parties consent; consent may only be withdrawn with leave (s 33). No appeal lies from a consent order disposing of an appeal or from procedural directions (s 32(8)).

Suppression orders (Division 2). An applicant, all parties, the Commonwealth, State and Territory governments, news publishers and any person with sufficient interest are entitled to appear and be heard on a suppression or non‑publication order application (s 232). The order must be no longer than is reasonably necessary to achieve its purpose (s 234).

Vexatious proceedings leave. A person subject to a vexatious proceedings order may apply for leave to institute a proceeding. The application must be accompanied by an affidavit that lists all previous leave applications and all other proceedings in any Australian court or tribunal (s 242(3)). The application must not be served unless the Court directs (s 242(4)). If the affidavit does not substantially comply or if the proposed proceeding is vexatious, the application must be dismissed (s 243).

• Overarching purpose breach: The Court must take any failure to comply with the overarching purpose duty into account when exercising the costs discretion. A lawyer may be ordered to pay costs personally and cannot recover them from the client (ss 68(4)-(6), 191(4)-(6)).
• Non‑compliance with directions: The Court may dismiss the proceeding, strike out or amend pleadings, disallow evidence, award costs, or order indemnity costs (ss 69(3)-(4), 192(3)-(4)). These are additional to any other sanctions available.
• Contempt: Both Divisions have the same power to punish contempt as the High Court, including contempt in the face of the Court (ss 45, 142).
• Witness offences: A person who fails to attend as required by subpoena, or who refuses to be sworn, answer a required question or produce a required document, commits an offence punishable by imprisonment for six months (s 200(1)-(2)). The same act or omission cannot be punished as both contempt and an offence (s 200(3)).
• Suppression order contravention: Contravening a suppression or non‑publication order made under Part 7 of Chapter 4 is an offence punishable by imprisonment for 12 months, 60 penalty units, or both (s 236(1)). Double punishment for the same act (offence and contempt) is prohibited (s 236(2)-(4)).
• Vexatious proceedings: A proceeding instituted in contravention of a vexatious proceedings order is automatically stayed. The Court may declare the stay and make any other order it considers appropriate, including costs (s 241).
• Security for costs: If security for costs is not given as ordered, the Court may dismiss or stay the proceeding (s 215(5)).
• Summary judgment: In non‑FLA proceedings, the Court may give summary judgment if a party has no reasonable prospect of success (ss 46, 143). This does not require the case to be hopeless or bound to fail (s 46(3)).
• Rules of Court penalties: Rules may prescribe penalties for offences against the Rules of up to 50 penalty units (ss 76(1)(f), 217(1)(f)). Regulations may prescribe penalties up to 60 penalty units (s 285(2)(a)).

• Family Law Act 1975: The overarching purpose and parties’ duties (ss 67-68, 190-191) do not apply to FLA proceedings (ss 68A, 191A); equivalent duties exist in ss 95-96 of that Act. The suppression and non‑publication order Part (Part 7 of Chapter 4) and the vexatious proceedings Part (Part 8 of Chapter 4) do not apply to FLA proceedings (ss 228, 239(3)); instead Parts XIA and XIB of the FLA respectively apply. The delegation provisions refer to specific FLA sections (ss 11F, 11G, 13C, 13D, 62G, 65LA(1), 66Q, 67E, 70NBD(1), 77, 90SG) as delegable powers (ss 98(2)(n), 254(2)(m)). The costs, pre‑judgment interest, post‑judgment interest and enforcement provisions in Division 2 (ss 211-215) explicitly do not apply to family law or child support proceedings, with cross‑references to FLA provisions (s 117B for interest, s 114UB for security for costs).
• Child support legislation: The definition of “family law or child support proceedings” includes matters under the Child Support (Assessment) Act 1989 and Child Support (Registration and Collection) Act 1988 (s 132(1)). Leave to appeal requirements in s 28 apply to judgments under those Acts.
• Judiciary Act 1903: Representation before the Court is tied to the right to practise in a federal court under that Act (ss 57, 175). Section 39B of that Act is expressly excluded in relation to certain decisions of the Chief Justice or Chief Judge concerning case allocation and complaints (ss 49(3), 148(3)).
• Federal Court of Australia Act 1976: Transfer of a non‑family law proceeding from Division 2 to the Federal Court under s 153 takes effect only if confirmed under s 32AD of that Act. Rules of Court made under the Federal Court Act apply residually in Division 2 non‑family law proceedings if no sufficient provision is made under the FCFCOA Act or its Rules (s 174(2)(b)).
• Trans‑Tasman Proceedings Act 2010: The video and audio link provisions do not apply to a person in New Zealand; Part 6 of that Act governs those appearances (ss 201(5), 202(3), 203(3), 208).
• Fair Work Act 2009: Proceedings under that Act must be exercised in the Fair Work Division (s 135(3) note), and the general costs provision (s 214) does not apply (s 214(2)(c)).
• Australian Human Rights Commission Act 1986, Public Interest Disclosure Act 2013: The general costs provision (s 214) does not apply to proceedings under Division 2 of Part IIB of the AHRC Act or under ss 14-16 of the PID Act (s 214(1)(b), (d)).
• Legislation Act 2003: Applies to Rules of Court with modifications regarding disallowance and sunsetting (ss 76(4), 217(3), (5)).
• Constitution: The restriction on direct appeals to the High Court from Division 2 (s 155) and Division 1 (s 55(1)) contains a savings clause: if inconsistent with s 73 of the Constitution, it operates as if the words “except by special leave of the High Court” were added (ss 55(6), 155(2)). The Chief Justice/Chief Judge complaint handling provisions reference s 72(ii) (removal for proved misbehaviour or incapacity) (ss 48(4), 145(4)).

According to the source material, the Act commenced on 1 September 2021 and no subsequent amendments are recorded. The Act itself amalgamated the former Family Court and Federal Circuit Court into the single FCFCOA with two Divisions. The stated objects of the Act included achieving common rules, forms, practices and case management approaches, and delivering justice effectively and efficiently (s 5). The source notes do not describe any later legislative changes, policy background or amendment history.

The source notes do not identify any court challenges or controversies relating to these provisions.

• Filing in the wrong Division. A party must not institute first‑instance family law or child support proceedings in Division 1. Any proceeding instituted in contravention is automatically transferred to Division 2 (s 50). This transfer is by force of the Act but can cause administrative delay. If the proceeding is transferred to the Federal Court, the automatic transfer does not take effect.
• Overarching purpose does not apply to FLA proceedings. The strong provisions directing parties and lawyers to act consistently with the just, quick, inexpensive and efficient resolution of disputes, and the personal costs consequences for lawyers, do not apply to proceedings under the Family Law Act 1975 (ss 68A, 191A). Practitioners must look to ss 95-96 of that Act for the family law equivalent.
• Suppression and vexatious proceedings regimes exclude family law. Part 7 (suppression orders) and Part 8 (vexatious proceedings) of Chapter 4 of the Act do not apply to proceedings under the Family Law Act 1975. Separate statutory schemes in Part XIA and Part XIB of the FLA govern those matters (ss 228, 239(3)). Applying the wrong scheme may result in a void order.
• Non‑delegable orders. Powers to make a defended divorce order, a decree of nullity, a declaration of validity of marriage, divorce or annulment, an excluded child order, or an order setting aside a registered award under s 13K of the Family Law Act 1975 cannot be delegated to Registrars (ss 98(3), 254(3)). An order made by a delegate in purported exercise of those powers is ultra vires.
• High Court appeal restrictions. Direct appeals from Division 2 to the High Court are prohibited outright (s 155(1)), subject only to the constitutional saving of special leave. From Division 1, a direct appeal from a single Judge’s appellate decision on a summary court matter or from original jurisdiction is prohibited unless special leave is constitutionally required (s 55(1), (6)). Various interlocutory decisions are entirely unappealable (s 55(3)). A practitioner who assumes a right of appeal may be surprised.
• No writ of attachment for enforcement of arbitration award money orders. While an order in terms of an arbitration award is enforceable as if made in an action, a writ of attachment is unavailable to enforce payment of money (s 173(4)).
• Representation limitations. Only persons entitled to practise under the Judiciary Act 1903 or authorised by other Commonwealth law may appear (ss 57, 175). A State practising certificate alone is insufficient.
• Evidence by affidavit in Division 2 family law/child support. If a party serves an affidavit, any other party may require the deponent to attend for cross-examination. If the deponent does not attend, the Court gives the affidavit such weight as it thinks fit (s 199). An affidavit that is not tested may be given reduced weight even if not formally challenged.
• Video and audio links from New Zealand prohibited. The Court cannot direct or allow testimony, appearance or submissions by video or audio link from New Zealand under the Act; the Trans‑Tasman Proceedings Act 2010 applies (ss 201(5), 202(3), 203(3), 208). Attempting to use the FCFCOA provisions will fail.
• Administrative contracts require ministerial approval. A contract under which the Commonwealth is to pay or receive more than $1 million (or a higher prescribed amount) entered into by the Chief Justice or Chief Judge under their administrative affairs power requires the Minister’s written approval (ss 78(6), 245(6)). Absent approval, the contract may be unauthorised.
• Personal costs orders against lawyers. Where a lawyer fails to comply with the overarching purpose duty (in non‑FLA proceedings), the Court may order the lawyer to bear costs personally, and the lawyer cannot recover those costs from the client (ss 68(5)-(6), 191(5)-(6)). This is a direct financial risk.
• Vexatious proceedings affidavit trap. An application for leave to institute a proceeding after a vexatious proceedings order must be accompanied by an affidavit listing all prior leave applications and all other proceedings in any Australian court or tribunal (s 242(3)). If the affidavit does not substantially comply, the application must be dismissed (s 243). There is no discretion to waive the requirement.
• Acting Chief Judge cascade. The Deputy Chief Judge (Family Law) acts first; the Deputy Chief Judge (General and Fair Work) acts only if both the Chief Judge and the Family Law deputy are unavailable; the Minister may appoint a Judge only if all three offices are vacant or the holders are unavailable (s 130). This rigid cascade must be observed for valid acting arrangements.

• Commence proceedings correctly. All first‑instance family law and child support proceedings must be instituted in Division 2, not Division 1 (s 50). Confirm whether a proceeding belongs in the Fair Work Division (s 135).
• Apply the correct procedural regime. For family law and child support matters, the overarching purpose duties, suppression orders and vexatious proceedings orders are found in the Family Law Act 1975, not the FCFCOA Act. For other civil proceedings, comply with the overarching purpose duty in ss 68 and 191, conducting all steps (including negotiations) to facilitate just, quick, inexpensive and efficient resolution.
• Provide costs and duration estimates if directed. If the Court requires a lawyer to give a party an estimate of the likely duration and costs (including adverse costs), comply promptly and accurately (ss 68(3), 191(3)). Document advice given to the client about the duty.
• Respect case management directions. Strictly comply with any direction under ss 69 or 192, including time limits, witness numbers, and filing requirements. Seek a variation or waiver before the deadline if compliance is impossible. Non‑compliance risks dismissal, striking out, or indemnity costs.
• Delegate‑exercised powers. When appearing before a Senior Registrar or Registrar, know which powers have been delegated and which are reserved to a Judge. If a decision is unfavourable, apply for review of the delegate’s exercise of power within the time prescribed by the Rules of Court (ss 100, 256). Do not ask a delegate to exercise a non‑delegable power.
• Appeals. Before filing an appeal, determine whether leave is required and the correct gateway (single Judge or Full Court) (s 28). Note the list of unappealable decisions. For appeals to the High Court, recognise that direct appeal from Division 2 is prohibited (s 155) and appeals from Division 1 are heavily restricted; prepare a special leave application where constitutionally required.
• Security for costs. In non‑family law proceedings, apply for security under s 215, noting that it does not apply to FLA matters (use s 114UB of the FLA). If security is ordered, provide it in the time, amount and manner specified; failure to do so may result in dismissal or a stay.
• Suppression and non‑publication orders. In Division 2 non‑family law proceedings, apply under Part 7, specifying the precise ground under s 231, identifying the information with particularity, and limiting the order to a duration no longer than reasonably necessary. Notify news publishers and other interested persons (s 232).
• Vexatious proceedings orders. If subject to an order, file a leave application accompanied by the comprehensive affidavit required by s 242(3), and do not serve the application unless the Court orders. If applying for an order against another person, gather evidence of frequent vexatious conduct across Australian courts or tribunals.
• Video and audio links. Before seeking a direction, ensure the facilities allow all eligible persons to see and hear (or hear) each other, and meet any prescribed conditions (s 204). Confirm the person is not in New Zealand; if they are, use the Trans‑Tasman Proceedings Act provisions.
• Witnesses. Adhere to the rules on administering oaths and affirmations. For evidence by affidavit, expect that a deponent may be required to attend for cross‑examination; failure to attend will affect the weight given to the affidavit (s 199).
• Judicial benefits claims. Retired disabled Division 2 Judges and their survivors should apply for certification and benefits under Div 3 of Part 2 of Chapter 4. Provide evidence on the permanence of the disability, the nature and duration of the marital or couple relationship (noting the three‑year continuous cohabitation presumption or the need for a Ministerial opinion), and, for former spouses or children, evidence of dependency. Note ART review of certain Ministerial decisions.
• Administrative approvals. If acting for the Chief Justice or Chief Judge in entering contracts, confirm that contracts above the $1 million threshold (or any higher prescribed amount) have the Minister’s written approval before execution.